-Submitted by David Drumm (Nal), Guest Blogger
That would be Judge Henry Hudson who recently struck down the Minimum Essential Coverage Provision of the Affordable Care Act that requiring all citizens obtain health care coverage, here. In one corner we have Orin S. Kerr, professor of law at The George Washington University Law School. In the other corner we have Kurt T. Lash professor of law at The University of Illinois College of Law.
It is Necessary and Proper that you read on.
Judge Hudson’s opinion (non-searchable pdf).
The Commerce Clause:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The Necessary and Proper Clause:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Justice Marshall, in McCulloch v. Maryland, saw the Necessary and Proper Clause as requiring a right fit between means and ends, and established the doctrine of implied powers:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.
CHAPTER 48 MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE.
Orin Kerr’s critique:
According to Professor Kerr the critical line is from page 19 of Judge Hudson’s opinion:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Professor Kerr’s reading of the critical line is that Judge Hudson assume that the Necessary and Proper Clause does not extend Congress’s power beyond Commerce Clause. The whole point of the Necessary and Proper Clause is it provides Congress with power beyond the powers enumerated in Article I, which includes the Commerce Clause.
As Professor Kerr says, “If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.”
Kurt Lash’s rebuttal:
Kurt Lash argues context in his assertion that Judge Hudson did not dismiss the concept of implied Congressional power.
According to Professor Lash the critical portion is from page 24:
Because an individual’s personal decision to purchase–or decline to purchase–health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. As Chief Justice Marshall noted in McCulloch, it must be within ‘the letter and spirit of the constitution.’ The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.
Professor Lash contends that Judge Hudson clearly embraces the standard understanding of the Necessary and Proper Clause when Judge Hudson wrote: “[a]lthough the Necessary and Proper Clause vests Congress with broad authority to exercise means, which are not themselves an enumerated power, to implement legislation, it is not without limitation.”
This is the key idea behind Hudson’s ruling, that upholding the mandate for individual insurance would require an interpretation of federal power that removes any limitation on that power. Such power would fall outside John Marshall’s declaration in McCulloch that all claims of federal power must fall “within the letter and spirit of the Constitution.”